Friday, April 18, 2008

Three from Chin on U.S. Immigration History

Gabriel J. (Jack) Chin, University of Arizona James E. Rogers College of Law, has just posted on SSRN three articles on U.S. immigration law history. To place this work in a comparative context, see also Satvinder Juss's recent article on citizenship in the United Kingdom in the 60s and 70s, noted in the previous post.

The Civil Rights Revolution to Immigration Law: A New Look at the Immigration and Nationality Act of 1965 appeared in the North Carolina Law Review (1996). Here's the abstract:
The Immigration and Nationality Act of 1965 may prove to be the most consequential of the Great Society civil rights initiatives. The Act removed a reference for whites which had been a central feature of American immigration and nationality law since 1790; the resulting diversification of the immigrant stream will make America a "majority minority" nation within a few decades. Many commentators contend that the diversification that resulted from race-neutral immigration policy was unanticipated, undesired or both, from the perspective of the Congress that passed the Act. This article reexamines the question, drawing on legislative history as well as interviews with key legislators such as Gerald R. Ford, cabinet members including Nicholas deB. Katzenbach, and other participants in the development of the Act. The article concludes that it is more likely that Congress, largely the same one that passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965, rejected the idea of America as a white nation. Congress actually intended to eliminate racial discrimination, and welcomed the diversification that it knew would result.
Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration appeared in the UCLA Law Review (1998). Here's the abstract:
For over a century, the Supreme Court has granted federal immigration laws a unique immunity from judicial review. Relying on the so-called plenary power doctrine, the Court has said that "over no conceivable subject" is federal power greater than it is over immigration; even modern federal cases, for example, state that Congress may freely discriminate on the basis of race in this context. In recent years, the Court has defended this approach primarily on stare decisis grounds. In this Article, Professor Gabriel Chin suggests that the plenary power doctrine should be reexamined because the foundational cases are unsound. Chae Chan Ping v. United States and Fong Yue Ting v. United States, the cases that established the plenary power doctrine and remain the leading cases, upheld federal discrimination against immigrants based on race. The plenary power cases were decided by the same Court that decided Plessy v. Ferguson; like Plessy, they reflect principles that have been emphatically rejected by the Court since Brown v. Board of Education.
The Plessy Myth: Justice Harlan and the Chinese Cases was published in the Iowa Law Review (1996). Here's the abstract:
For a century, the vision of racial equality expressed in John Marshall Harlan's dissent in Plessy v. Ferguson has captured the legal imagination in a way matched by few other texts. Even today, the symbolic power of Harlan's rejection of segregation of African Americans and whites in New Orleans streetcars is rivaled only by the Reverend Martin Luther King, Jr.'s I Have a Dream speech and Brown v. Board of Education. There is a tiny fault in Harlan's Plessy dissent, a slip. After arguing that the government should guarantee "equality before the law of all citizens of the United States, without regard to race," the next paragraph begins like this: "There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race [cannot]...." This essay explores Justice Harlan's attitude towards Chinese Americans in this and other cases in an effort to contextualize his Plessy dissent, and concludes that his anti-Chinese attitude is reasonably consistent. Many scholars ignore the anti-Chinese language in Plessy and other cases, making no effort to square his words with the idea that Harlan's view is worth following today. The essay concludes by suggesting that while Harlan was ahead of his colleagues on the Plessy Court in recognizing that "separate but equal" was catastrophically flawed, he failed to offer an understanding of equal protection of the laws which is useful today. Instead, Harlan's vision of a Constitution protecting some non-whites, yet approving of racial discrimination against other non-whites, was ultimately as unprincipled and unstable as the particular form of race hierarchy he rejected.

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